A new report published today by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE provides clear evidence that the growing, global movement against HIV criminalisation has resulted in more advocacy successes than ever before. However, the number of unjust HIV criminalisation cases and HIV-related criminal laws across the world continue to increase, requiring more attention, co-ordinated advocacy, and funding.

Our global audit of HIV-related laws found that a total of 75 countries (103 jurisdictions) have laws that are HIV-specific or specify HIV as a disease covered by the law. As of 31st December 2018, 72 countries had reported cases: 29 countries had ever applied HIV-specific laws, 37 countries had ever applied general criminal or similar laws, and six countries had ever applied both types of laws.

Promising and exciting developments in case law, law reform and policy took place in many jurisdictions: two HIV criminalisation laws were repealed; two HIV criminalisation laws were found to be unconstitutional; seven laws were modernised; and at least four proposed laws were withdrawn. In addition, six countries saw precedent-setting cases limiting the overly broad application of the law through the use of up-to-date science.

Progress against HIV criminalisationis the result of sustained, co-ordinated advocacy using a wide range of strategies. These include:

Building the evidence base

Ensuring the voices of survivors are heard

Training to build capacity

Using PLHIV-led research to build community engagement capacity

Using science for justice

Engaging decision-makers through formal processes

Acting locally and growing capacity through networks

Getting the word out and engaging with media

Although the full report is currently only available in English, a four-page executive summary is available now in English, French, Russian and Spanish. The full report will be translated into these languages and made available later this summer.

The Marriages Amendment Bill which will repeal a legal provision that criminalises "wilful" transmission of HIV to a partner has been approved by Cabinet.

Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi said a Clause in the Criminal Law (Codification and Reform) Act that criminalises transmission of HIV by one partner to another would be repealed.

Minister Ziyambi said this yesterday in Harare while responding to questions from journalists during a post Cabinet briefing which was chaired by Environment, Tourism and Hospitality Industry Minister, Prisca Mupfumira.

He said the Marriages Amendment Bill which was approved by Cabinet would also repeal that Clause of the Criminal Law (Codification and Reform) Act.

"Yes, indeed Cabinet approved that we repeal the Criminal Law (Codification and Reform) Act where it speaks about these criminalisation so we will repeal the Criminal Code in this regard," said Minister Ziyambi.

The Marriages Amendment Bill will soon be gazetted before it is tabled before Parliament for debate.

The decision to decriminalise transmission of HIV dovetails with what Minister Ziyambi told Parliament earlier this year.

In March, Minister Ziyambi made an assurance to repeal the Clause during a question and answer session after Zengeza West legislator Mr Job Sikhala (MDC-Alliance) had asked if Government was considering amending the law which criminalise transmission of HIV.

Mexico: Following the Second National Mexican Network meeting, legislator demands repeal of a law used for HIV criminalisation in the Mexico City criminal codeApril, 2019 - Sero Project

In February 2019, the Second National Meeting of the Red Mexicana de Organizaciones en Contra de la Criminalización del VIH was held in Mexico City. The meeting was attended by representatives of 16 states of the Mexican Republic and 26 representatives of civil society organisations.

Attendees and supporters of the work being developed by the Red Mexicana were present at the opening ceremony, as was the the deputy of the local congress of the city, Temístocles Villanueva Ramos, who in his intervention expressed his commitment to present the initiative to reform article 159 of the penal code of Mexico City that criminalises HIV.

During the meeting, the Red Mexicana discussed how HIV is criminalised through the civil and penal codes of some states of Mexico, and also prepared the 2019 work plan.

It was so that on March 12, the Red Mexicana was present at the capital congress, when Deputy Villanueva Ramos presented his initiative before the plenary of the House, noting that criminalising conditions such as HIV hinders the work of the authorities to guarantee public health while respecting human rights.

"The criminalisation of HIV generates more harm than benefits in public health and human rights, so this initiative aims to repeal the article and reform the one that makes reference to eliminate the penalty and the type of danger of contagion," he said. He explained that currently Article 159 of the Criminal Code treats sexually transmitted infections differently to any other disease, since it specifically penalises the health condition of the active subject, which causes a discriminatory distinction between people living with a disease acquired by 'sexual contagion' and those who have some other disease acquired by other means. "The penalty for danger of contagion is based on the risk of harm, not on the damage itself, which overstates the responsibilities of people with HIV, limiting their adequate access to justice," he lamented.

He stated that in Mexico, as well as in other countries of the world, people with HIV are subject to criminal law when they expose other people, however, according to UNAIDS, there is no data to prove that these measures generate justice or that the transmission of the virus is prevented. "If the penalties for people with HIV and sexually transmitted infections (STIs) are eradicated, discrimination is reduced and cultural barriers are eliminated for timely detection and prevention," he said.

Villanueva Ramos warned that the main problem of the definition of "Danger of Contagion", both in the Federal Criminal Code and in local codes is the ambiguity of the definition of incriminating behaviours, for which the jurisdictional authority is the one who decides most of the time what diseases are considered serious or what behaviours are punishable. "These type of measures that end up violating the human rights of people with HIV without contributing to the eradication of the epidemic can also be observed in other countries," he said.

Canada: Canadian HIV/AIDS Legal Network's Executive Director acts as key witness for the House of Commons Justice Committee's study of the ‘Criminalization of Non-Disclosure of HIV Status’

April 2019 - Canadian HIV/AIDS Legal Network

You may remember our last update concerning the federal Attorney General’s new announcement: a federal directive to limit unjust prosecutions against people living with HIV in Canada. The new government directive is already having some impact — in January it led to Crown prosecutors in the Northwest Territories dropping a wrongful sexual assault charge against a man living with HIV in Yellowstone. "We followed the directive and chose not to prosecute," said Crown attorney Alex Godfrey.

While the directive is an important step that should be celebrated, it does have its limits. It does not reflect international guidance for the use of criminal law to be limited only to rare cases of intentional transmission, and it solely applies to Canada’s territories. Provinces are lagging behind and represent a patchwork of inconsistent approaches across the country. As of today, only three provinces — Ontario, British Columbia and Alberta — have a formal policy in place or have directed crown prosecutors to limit prosecutions of HIV non-disclosure, and they all fall short of putting an end to unjust prosecutions. In April, pressured by civil society, the British Columbia Prosecution Service had another attempt at their policy (initially released in March 2018). While the updated policy now precludes prosecutions in cases of an undetectable viral load (“for at least four months”) and oral sex (with “no other risk factors present”), it remains problematic because it doesn’t rule out prosecuting people who use condoms. Instead, the new policy says that using a condom is a factor that “may” weigh against prosecuting someone. This indicates only minor progress, and does not adequately consider human rights, updated science or international guidance.

In order to create the meaningful change needed to end the criminalization of people living with HIV in Canada, it’s clear that we need Criminal Code reform. In March, the House of Commons Justice Committee began a study of the ‘Criminalization of Non-Disclosure of HIV Status’. Our executive director, Richard Elliott, testified as a key witness to help our MPs gain insight into why our current approach is wrong. HIV JUSTICE WORLDWIDE also submitted a brief to the committee, providing international context to Canada's extremely severe approach to HIV non-disclosure. The testimonies from a range of witnesses, including members of the Canadian Coalition to Reform HIV Criminalization, consistently reinforced the message that we need reforms to the Criminal Code to put an end to the use of sexual assault charges in cases of HIV non-disclosure and to limit HIV criminalization to rare cases of intentional transmission. The message to our MPs is clear: end the criminalization of people living with HIVand put human rights at the centre of any response to HIV.

France: Highest Court confirms that people living with HIV with an undetectable viral load can never be prosecuted as the risk of transmission is zeroMarch 21, 2019 - Source: Tetu

Can a person living with HIV be prosecuted if she is under treatment? The Court of Cassation (French Highest Court) delivers a landmark decision.

In a decision handed down on 5 March, the Court of Cassation ruled that it was impossible to prosecute an HIV-positive man on treatment who had sex without a condom and without informing his partner of his HIV status.

That’s a first. In a decision handed down on 5 March, the Court of Cassation recognised the preventive nature of HIV treatment. Thus, any person whose viral load is undetectable, who has sex without a condom with another person without the latter being aware of the HIV status of his or her partner, cannot be prosecuted.

In this case, a woman who had sex with a man who was HIV-positive and undergoing treatment sued the man on the grounds that he had not previously informed her of his HIV status. The partner was not infected. However, the man was prosecuted on the grounds of “administration of a harmful substance”, i.e. alleged exposure to the virus.